01976518
03-02-1999
Lawanda Burns, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Lawanda Burns v. United States Postal Service
01976518
March 2, 1999
Lawanda Burns, )
Appellant, )
)
v. ) Appeal No. 01976518
) Agency No. 1K-221-0111-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated August 15, 1997, which the agency issued pursuant to EEOC
Regulation 29 C.F.R. �1614.107(a). The Commission accepts the appellant's
appeal in accordance with EEOC Order No. 960, as amended.
The final agency decision identified six allegations raised by the
appellant's June 4, 1997 complaint. The decision accepted allegations
1 and 2 for investigation and dismissed allegations 3 through 6 for
failure to state a claim.
On appeal, the appellant contends that the final agency decision ignored
some allegations and redefined other allegations clearly stated in the
June 6, 1997 supplement to her complaint. The appellant also contends
that she was subjected to a hostile work environment. The appellant
further contends that the agency intentionally ignored prior Commission
decisions when it dismissed her allegations.
The proper focus for dismissals of individual EEO complaints under 29
C.F.R. �1614.107(a) is on whether the complainant is allegedly aggrieved
due to an unlawful employment practice in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq.;
the Age Discrimination in Employment Act, as amended, 29 U.S.C. 621 et
seq.; the Equal Pay Act, 29 U.S.C. 206(d); or the Rehabilitation Act,
as amended, 29 U.S.C. 791 et seq. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997), citing Hishon v. King &
Spalding, 467 U. S. 69, 73 (1984) (complaint states a claim because
Title VII's prohibition of discrimination with respect to an employee's
"terms, conditions, or privileges of employment" includes benefits
that are part of an employment contract and benefits which an employer
chooses, but is not required, to provide its employees). Even where
a complaint does not challenge an agency action or inaction regarding
hiring, termination, compensation or any other specific term, condition,
or privilege of employment, the complaint may still state a claim if
the complaint allegations are sufficient to state a hostile or abusive
environment claim. Id., citing Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993) (harassment is actionable if it is sufficiently severe
or pervasive to alter the conditions of the complainant's employment).
The Commission finds that, even if proven true, the dismissed
allegations, even when read in conjunction with the two additional
allegations contained in the appellant's amended complaint, do not
indicate that the appellant may have been subjected to harassment
that was sufficiently severe or pervasive to alter the conditions
of her employment. Accordingly, the Commission finds that the
dismissed allegations do not state a claim under 29 C.F.R. Part 1614.
See Phillips v. Department of Veterans Affairs, EEOC Request No. 05960030
(July 12, 1996) (allegations that supervisor had "verbally attacked"
the complainant on one occasion, attempted to charge him with AWOL,
and disagreed with the time the complainant entered into a sign-in log,
were insufficient to state a harassment claim); Backo v. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996) (a supervisor's
remarks on several occasions, unaccompanied by any concrete action,
were not sufficient to state a claim); Miller v. United States Postal
Service, EEOC Request No. 05941016 (June 2, 1995) (an oral admonishment
was not sufficient to state a hostile work environment claim); Banks
v. Health and Human Services, EEOC Request No. 05940481 (February 16,
1995) (allegations that on one occasion a supervisor threw a file on
the complainant's desk and berated her in a loud voice in the presence
of other employees, causing her embarrassment and humiliation, were
insufficient to state a harassment claim); and Henry v. United States
Postal Service, EEOC Request No. 05940695 (February 9, 1995) (allegation,
that on one occasion a supervisor questioned the complainant about his
requested schedule revisions, did not state a claim).
However, if the appellant has filed additional complaints alleging
harassment that are still pending before the agency, then the agency
should consider the allegations raised in this complaint as part of a
continuing hostile work environment claim. See Cobb, supra; and Toole
v. EEOC, EEOC Appeal No. 01964702 (May 22, 1997).
The Commission reminds the agency that any allegations not expressly
dismissed by the agency (i.e. issues I and VI in the appellant's amended
complaint) are still pending before the agency for processing.
The Commission advises the appellant that if the agency does not complete
counseling within 30 calendar days, she is authorized to file her formal
complaint pursuant to 29 C.F.R. �1614.105(d). If the agency does not
timely complete its investigation of her complaint, she may request a
hearing pursuant to 29 C.F.R. �1614.108(f).
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of allegations 3 through 6 as defined in the June 15, 1997
final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive this decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. If you file a civil action,
YOU MUST NAME AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE
OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS
OR HER FULL NAME AND OFFICIAL TITLE. Failure to do so may result in
the dismissal of your case in court. "Agency" or "department" means the
national organization, and not the local office, facility or department
in which you work. If you file a request to reconsider and also file a
civil action, filing a civil action will terminate the administrative
processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
Mar 2, 1999
______________
Date Ronnie Blumenthal, Director
Office of Federal Operations